delivered the opinion of the court:
Respondent, Paul Wojcik, appeals from the trial court’s judgment dissolving his marriage to petitioner, Karen Wojcik. The trial court awarded 55% of the parties’ marital assets to Karen and 45% of those assets to Paul. The trial court also denied Paul’s request for an award of maintenance and reserved ruling upon Karen’s request for an award of maintenance. On appeal, Paul contends that (1) the trial court’s valuation of certain marital assets and its determination of the parties’ incomes were against the manifest weight of the evidence; (2) the trial court abused its discretion in finding that Paul’s motorcycle was marital property; (3) the trial court erred in considering Paul’s receipt of veterans’ disability benefits in dividing the marital estate; (4) the trial court abused its discretion in awarding Karen the marital residence and in apportioning the other marital assets; (5) the trial court erred in considering Paul’s receipt of veterans’ disability benefits when it ruled on his request for maintenance; and (6) the trial court erred in reserving ruling upon Karen’s request for maintenance. For reasons that follow, we affirm in part, modify in part, vacate in part, and remand the case for further proceedings.
The parties were married on February 15, 1975. One child, Jeffrey, was born to the marriage in 1984 and is now emancipated. Since their son’s birth, the parties resided in the same home in Villa Park. Karen filed her petition for dissolution of marriage on December 2, 2003. Paul filed a counterpetition for dissolution of marriage on December 24, 2003. Each party also petitioned for an award of maintenance. At the time of trial, Karen was 53 years old and Paul was 54 years old.
The following evidence was introduced at trial. Paul served in the military during the Vietnam War between 1970 and 1971. After his discharge from service, Paul graduated from the College of Du Page and began a career in computer processing. In 1986, Paul started his own consulting business, which was called Midwest Software Consultants, Inc. The business was successful and had peak gross earnings in 2001 in excess of $175,000. Following the terrorist attack in New York on September 11, 2001, Paul began to experience heightened panic and encountered difficulties dealing with his business associates. After Paul had an altercation with his largest client, the client canceled its contract, and Midwest Software Consultants, Inc., ceased operations in the summer of 2002. Paul was subsequently diagnosed as suffering from post-traumatic stress disorder and received treatment through the United States Veterans Administration (the VA). In January 2003, the VA adjudicated Paul 70% disabled and unemployable. The VA currently pays Paul monthly disability benefits of $4,000.
Karen worked for various employers throughout the parties’ marriage. One of her prior employers was Delta Airlines, and Karen receives a $697 monthly pension from that company. At the time of trial, Karen was employed at Elmhurst College, where she worked full time during the academic school year. Karen’s annual salary was $19,620. Karen testified that her monthly paycheck deductions for taxes and insurance would decrease from $638.05 to $483.05 once Paul was removed from her coverage as a dependent.
Prior to trial, the parties stipulated to the value of the following marital assets:
Villa Park Trust & Savings Account 1963867 $58,921.76
Villa Park Trust & Savings Account 10403103 $63,578.21
CMA Account 56x-llQ55 $33,870.06
Charter One Account 8885202818 $52,632.01
Karen’s TIAA-CLEF Retirement Account $14,690.29
Paul’s Merrill Lynch Retirement Account $113,368.37
Karen’s IRA Account $16,269.37.
The parties also agreed that $28,000 of the funds deposited in Villa Park Trust & Savings account 1963867 was Paul’s nonmarital asset. This $28,000 amount represented VA disability benefits that Paul had received since the filing of the dissolution petition. In regard to Villa Park Trust & Savings account 10403103, the parties agreed that certain payments had been made from this account for property taxes and income taxes, thus reducing the account’s value to $52,197.54. Both parties also testified that, at the time of trial, the market value of Paul’s Merrill Lynch self-employed person (SEP) retirement account had decreased from the stipulated value of $113,368.37 to $92,960. Both parties attributed the decline in value to a downturn in the stock market.
Paul gave testimony concerning other assets that were not a part of the parties’ stipulation. Paul testified that the parties jointly owned a 2003 Jeep Cherokee. Paul testified that, according to Edmunds’s Used Car Guide, the vehicle had a value of $23,000. Paul also requested that he be awarded his Harley Davidson motorcycle as his nonmarital property. Paul testified that he had purchased the motorcycle in 1999 for $16,000 using money he had inherited from his father in 1998. Paul acknowledged that he deposited his inheritance money in the parties’ joint bank account and that the money remained there for several months until he purchased the motorcycle.
Paul also requested the trial court to award him the marital home. Paul testified that he had performed most of the maintenance and repairs on the interior and exterior of the home. Paul designed and helped build the swimming pool and deck, installed a fence, and had the yard professionally landscaped. Paul also remodeled the basement of the home. Paul testified that he has spent the majority of his time in the marital home since the onset of his disability and that he felt most comfortable there.
During his case, Paul moved the trial court to admit into evidence a copy of the VA’s written order adjudicating him to be disabled. Paul argued that the decision was a final administrative decision and requested the trial court to take judicial notice of the order. The trial court denied the motion and explained that it could not take judicial notice of the order because it was not published and accessible to the public. The trial court did allow Paul to include the decision in the trial court record as an offer of proof.
Karen also testified regarding the ownership and value of certain assets held by the parties. She testified that, according to Kelly’s Blue Book, the parties’ 2003 Jeep Cherokee had a value of $24,000 and the 1999 Harley Davidson motorcycle had a value of $16,000. Karen maintained that both of these vehicles were marital assets. Additionally, Karen asserted that the Mercuiy Sable that she drove was her own nonmarital property. Karen testified that she purchased the vehicle in 2003 for $22,875 using money that her brother had given to her as a gift. Karen acknowledged that she had deposited the money in the parties’ joint bank account prior to purchasing the vehicle. Karen testified that she placed the money in the account simply as a conduit for disbursement of the purchase price. Karen testified that the money was in the parties’ joint account for only one day.
Karen requested the trial court to award her the marital home. Karen liked the neighborhood the house was in, and the house was located 15 minutes from her job. Karen testified that she could afford to live in the home because the mortgage was paid and she would have to pay only the property taxes. Karen acknowledged that Paul spent more time in the marital home than she did.
George Pappas testified that he was retained by Karen to appraise the parties’ marital home. Pappas prepared a uniform residential appraisal report on January 2, 2004, approximately seven months prior to trial. Pappas testified that he valued the parties’ home at $295,000. Pappas indicated that, during the seven-month period between the preparation of the appraisal and trial, favorable market conditions existed and the value of the home might have increased by as much as $8,000.
The parties stipulated to the deposition testimony of Paul’s psychiatrist, Dr. Jeffrey Zadecki. Dr. Zadecki testified that he diagnosed Paul as suffering from post-traumatic stress disorder in September 2002. Dr. Zadecki testified that, as of the time of trial, Paul’s disorder continued to be severe and his social functioning was worsening. To treat the symptoms of his disorder, Dr. Zadecki prescribed various medications for Paul including Prozac, Wellbutrin, Clonazepam, and Sertraline. Dr. Zadecki opined that Paul’s condition was chronic and that he would continue to encounter severe difficulty in functioning in occupational and social roles. Dr. Zadecki also opined that Paul would not be able to pursue any gainful employment because of his disability. On cross-examination, Dr. Zadecki testified that Paul’s prognosis was “not absolutely pessimistic” and that Paul might eventually be able to function sufficiently to be self-employed. However, Dr. Zadecki opined that it was unlikely that Paul would be able to be effective in a work environment.
On September 14, 2004, the trial court issued a written memorandum of its findings. The trial court valued the Mercury Sable at $16,000 and awarded it to Karen as her nonmarital property. The trial court also found that $28,000 of the funds deposited in Villa Park Trust & Savings account 1963867 represented VA disability benefits that Paul had received since the commencement of the dissolution proceeding, and it awarded this amount to Paul as his nonmarital property. The trial court found that the remainder of the parties’ assets were marital; it then valued and divided those assets as follows:
Karen Paul
Marital Home
$295,000
Villa Park Trust & Savings
15,600
$36,597
Account 10403103
Villa Park Trust & Savings
30,928
Account 1963867
CMA Account 56x-llQ55
33,870
Charter One Account 885202818
52,632
Karen’s TIAA-CLEF Retirement
14,690
Account
Paul’s Merrill Lynch SEP
15,000
98,368
Retirement Account
Karen’s IRA Account
16,269
2003 Jeep Cherokee
24.000
2000 Harley Davidson motorcycle
16.000
TOTAL
$356,559
$292,395.
In dividing the marital assets, the trial court indicated that its intent was to “as closely as possible arrive at a 50/50 distribution of the marital estate with any discrepancies in that accounted for by the larger non-marital estate awarded to [Paul].” The trial court also specifically stated that it had not considered Paul’s disability benefits “as a set off *** in its division of marital assets.”
In considering the parties’ respective requests for maintenance, the trial court found that Karen was employed and earned approximately $19,200 annually. The trial court also found that respondent was disabled and received $51,000 annually in VA disability benefits. The trial court indicated that, “[biased.upon the recent Supreme Court case of In re Marriage of Crook, [
The trial court denied Paul’s request to receive maintenance from Karen. The trial court found that the decision in Crook did not preclude it from considering the fact that Paul received in excess of $51,000 annually in VA disability benefits. The trial court found that these benefits would be sufficient to pay for his living expenses. Additionally, the trial court found, “based upon testimony as to [Karen’s] income and expenses, that she is not able to contribute to the maintenance of lPaul] even if the Court would consider that [Paul] had no other means to provide for his own needs.”
On September 30, 2004, the trial court entered its finál judgment consistent with its written memorandum. Paul subsequently filed a timely notice of appeal.
We first consider Paul’s contention that the trial court’s valuation of certain marital assets and its determination of the parties’ incomes were against the manifest weight of the evidence. Specifically, Paul argues that the trial court erred in valuing his SEP retirement account and the parties’ marital residence. Paul also contends that the trial court’s findings that Karen had $19,200 in annual income and that he had $51,000 in annual income were against the manifest weight of the evidence.
The valuation of marital assets in a dissolution of marriage proceeding is a question of fact that will not be disturbed on review unless it is contrary to the manifest weight of the evidence. In re Marriage of Wilder,
In the dissolution judgment, the trial court valued Paul’s SEP retirement account at $113,368.37, which was the value stipulated by the parties as of June 30, 2004. During the August trial, however, both parties testified that the value of this account had diminished to $92,960 due to a downturn in the stock market. Although the parties had stipulated to the higher value, the trial court should have rejected the stipulation in light of the undisputed evidence that the asset had significantly decreased in value. See Bloome v. Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C.,
We next consider the valuation of the marital home. In the dissolution judgment, the trial court valued the home at $295,000. which was the valuation given by Pappas in his Januai 2004 apprais; Paul argues that the trial court’s valuation failed to take into accoi .it the appreciation in value between the appraisal and the August 200-1 trial. We disagree. Our review of the record reveals that there was no credible evidence of appreciation between the time of the appraisal and trial. Although Pappas testified that the value of the marital home had likely increased by $8,000, he explained that such a figure was “pure speculation” and not the result of any detailed market analysis or inspection of the home. In light of Pappas’s testimony that any estimate of the appreciation in value of the home since the time of the appraisal would be speculative, we do not believe that the trial court’s use of January 2004 appraisal as its valuation of the marital home was improper. See In re Marriage of Sanborn,
Paul also disputes the trial court’s findings as to the parties’ annual incomes. Paul argues that Karen’s net annual income was actually $22,187.40 as opposed to the $19,200 annual income found by the trial court. Paul also argues that his net annual income was actually $48,000 as opposed to the $51,000 annual income found by the trial court. On review, we will not set aside such factual findings unless they are clearly against the manifest weight of the evidence. In re Marriage of Swigers,
A review of the record supports Paul’s arguments that the trial court’s findings as to the parties’ incomes were erroneous. Karen testified that she received $19,620 in salary annually from her position at Elmhurst College, from which $5,796 was deducted for taxes and insurance coverage. Karen also testified that she received $8,364 annually in pension payments from Delta Airlines. When combined, Karen’s annual income from all sources was $22,188 as opposed to the $19,200 found by the trial court. Meanwhile, prior to trial, the parties stipulated that Paul’s income consisted of $4,000 per month in benefits. Thus, Paul’s annual income was $48,000 as opposed to the $51,000 found by the trial court. In her appellate brief, Karen does not dispute Paul’s argument that the trial court’s findings as to the parties’ incomes were erroneous.
We conclude, however, that the effect of such erroneous findings was harmless. As we will discuss more fully below, the trial court’s written memorandum findings indicated that it had endeavored to split the marital prop^ - y evenly and did not spe. lfically mention the parties’ respective inc. íes in dividing the marital estate. Although the trial court undoubn dly considered the parties’ incomes as a factor in dividing the marital assets (see 750 ILCS 5/503(d)(8) (West 2004)), we do not believe that the trial court’s property division would have been any different had it considered the correct income amounts. As noted above, Karen’s income was actually $3,000 greater than the number used by the trial court and Paul’s income was $3,000 less than the number used by the trial court. We do not believe that these minor discrepancies would have altered the trial court’s clearly expressed intention to divide the marital estate equally. See Wilder,
Additionally, we do not believe that these discrepancies would have had any impact upon the trial court’s maintenance determination. The trial court found that Karen did not earn sufficient income to pay maintenance to Paul and denied Paul’s request for maintenance. Whether Karen earned $22,000 or $19,000, the evidence clearly demonstrated that her income did not meet her own expenses and that she was not in a position to pay maintenance to Paul. Meanwhile, the trial court specifically indicated that it would not consider Paul’s disability income in ruling upon Paul’s request for maintenance; thus, whether Paul received $51,000 or $48,000 in disability benefits would have had no impact upon the trial court’s maintenance determination. Although we will later consider the question of whether a trial court may consider a party’s receipt of veterans’ disability income in making a maintenance award, we conclude the trial court’s erroneous findings as to the parties’ incomes were harmless because they had no impact upon the resolution of the issues before it. See Wilder,
Paul next contends that the trial court abused its discretion in classifying his Harley Davidson motorcycle as marital property. Paul argues that the trial testimony established that he had purchased the motorcycle with an inheritance he had received from his father’s estate.
Prior to dividing the parties’ property upon dissolution of marriage, the trial court must classify the property as either marital or nonmarital. In re Marriage of Didier,
After reviewing the record in the instant case, the trial court’s classification of the Harley Davidson motorcycle as marital property was not against the manifest weight of the evidence. The trial evidence established that, sometime during 1998, Paul inherited money from his father’s estate. At the time he initially received the inheritance, there is no question that the property was nonmarital. 750 ILCS 5/503(a)(l) (West 2004). However, after receiving this money, Paul deposited it into a bank account jointly held by the parties. Apparently, the funds were then transferred between various accounts and certificates of deposit. Paul testified that he was not sure whether the original account that he deposited the money into was still open at the time of trial. Paul testified that, several months after receiving the inheritance, he purchased the motorcycle. Although Paul testified that he believed that he had used the inheritance money to purchase the motorcycle, Paul introduced no documentary evidence to show that the specific funds inherited were segregated and ultimately used for the purchase. As Paul had the burden to prove that the motorcycle was nonmarital, it was incumbent upon him to establish that he did not intend to make a gift to the marital estate at the time he deposited the inheritance into the parties’ joint checking account. See Hegge,
In reaching this conclusion, we are unpersuaded by Paul’s argument that the process that he used to purchase the motorcycle was the same process used by Karen when she purchased her Mercury Sable, which the trial court classified as nonmarital property. Karen testified that she purchased the Mercury Sable with money that she had received as a gift from her brother. Although Karen placed the money in the parties’ joint account prior to purchasing the vehicle, Karen testified that the funds were in the parties’ joint account for only one day and that she had placed the funds in the account merely as a conduit to transfer the money. Based upon such evidence, the trial court could have reasonably concluded that Karen had established by clear and convincing evidence that she had not intended to make a gift to the marital estate of the money her brother had given her.
We next consider Paul’s contention that the trial court erred in considering his receipt of VA disability benefits in resolving the property issues presented in the dissolution proceeding. Paul argues that, under the principles articulated in Hisquierdo v. Hisquierdo,
In Hisquierdo, the United States Supreme Court reversed a decision designating the former husband’s federal railroad retirement benefits as community property and awarding the former wife an interest in those benefits. The Court explained that, although the subject of domestic relations generally belongs to the states, in an instance where state family law directly conflicts with a federal statute, the federal statute preempts the state law under the supremacy clause of the federal constitution. Hisquierdo,
In Crook,
The question presented in the instant case is whether federal law preempts a trial court from considering a spouse’s VA disability benefits in resolving the property issues in a dissolution proceeding. Section 5301(a)(1) of Title 38 of the United States Code (Veterans’ Benefits) contains a prohibition against the transfer and assignment of present and future VA disability benefits that is similar to those provisions in the Railroad Retirement Act of 1974 and Social Security Act described above. See 38 U.S.C.A. § 5301(a)(1) (West Supp. 2004). That section provides:
“Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” 38 U.S.C.A. § 5301(a)(1) (West Supp. 2004).
The parties agree that such statutory authority, when considered in light of the Hisquierdo and Crook cases, prohibits an Illinois trial court from dividing present or future VA disability benefits as a marital asset or using those benefits as a basis for an offset in awarding the marital property.
Although the United States Supreme Court has never directly considered the question before us, it did tangentially address the issue in Mansell v. Mansell,
Our research has uncovered one Illinois decision addressing the question of whether military disability benefits are marital assets subject to division in a dissolution proceeding. See In re Marriage of Hapaniewski,
Courts of other states have also concluded that federal law preempts a state court from dividing a spouse’s present or future VA disability benefits during a dissolution proceeding. See, e.g., In re Marriage of Howell,
After reviewing these authorities, and in light of our supreme court’s analysis in Crook, we agree with the parties that the supremacy clause of the federal constitution precludes Illinois trial courts from dividing present or anticipated VA disability benefits as a marital asset or using those benefits as a basis for an offsetting award of the marital property. We believe that the anti-attachment provision contained in section 5301(a)(1) is indistinguishable from the anti-attachment provisions contained in the Railroad Retirement Act of 1974 and the Social Security Act discussed in Hisquierdo and Crook. Under these provisions, Congress expressed its direct intent that benefits paid pursuant to these programs are not subject to any legal process. See Crook,
Here, the trial court clearly did not characterize Faul’s present and anticipated VA disability benefits as marital property and did not award Karen a disproportionate share of the martial estate as an offset for Paul’s receipt of such benefits. Moreover, the trial court characterized as Paul’s nonmarital property the $28,000 in VA benefits that Paul had already been paid following the commencement of the dissolution proceedings and placed in the parties’ joint banking account number 1963867 at Villa Park Trust & Savings. Such rulings were certainly in accordance with federal and state law principles discussed above.
Paul specifically objects to the trial court’s comment in its written memorandum order that it “was the Court’s intent to as closely as possible arrive at a 50/50 distribution of the entire marital estate with any discrepancies in that accounted for by the larger non-marital estate awarded to [Paul].” Paul argues that, since the entirety of his nonmarital assets consisted of VA disability benefits that he had received, the trial court effectively awarded Karen a larger share of the marital estate as an offset for his disability benefits.
We find no impropriety in the trial court’s statement. Initially, we note that the trial court specifically expressed its intent that each party receive approximately one-half of the marital assets. The trial court made this determination without any consideration of Paul’s accumulated disability benefits. It is apparent from the trial court’s own written findings that it did not intend to award Karen a greater share of the marital property as a result of Paul’s receipt or accumulation of disability benefits. In dividing the marital estate, however, the trial court noted that it was difficult to achieve precisely equal shares. The trial court indicated that, to the extent that the shares were unequal, it would award the larger share to Karen because Paul had greater nonmarital assets. The trial court certainly had the statutory authority to make such an award under section 503(d)(3) of the Act (750 ILCS 5/503(d)(3) (West 2004)), which directs the trial court to consider “the value of the property assigned to each spouse” in dividing the marital property. In accordance with section 503(d)(3), Paul’s accumulation of disability benefits, as nonmarital property set aside to him, was a proper factor for the trial court to consider in the division of the marital property. See Hapaniewski,
We also do not believe that the trial court’s consideration of Paul’s accumulated disability benefits ran afoul of the anti-attachment provisions of section 5301(a)(1). Those anti-attachment provisions speak to the “payment of benefits due or to become due” to a veteran. 38 U.S.C.A. § 5301(a)(1) (West Supp. 2004). In other words, the federal statute prohibits the assignment or attachment of present or anticipated disability benefit payments. See generally Crook,
In the instant case, the trial court did not consider Paul’s present or future disability benefits in dividing the marital assets. Instead, the trial court simply noted that Paul had already received and accumulated $28,000 in disability benefits that had been deposited in the parties’ Villa Park Trust & Savings account. Although such assets may have been protected from creditors under the provisions of section 5301(a)(1) (see Porter v. Aetna Casualty & Surety Co.,
We next consider Paul’s contention that the trial court abused its discretion in dividing the marital assets. Paul argues that he was entitled to more than half of the marital estate because he made a greater contribution toward the acquisition and preservation of the marital assets. Paul also argues that the trial court should have awarded him a greater share of the marital assets because he was disabled and unemployable, while Karen was healthy and employed. Paul also argues that the trial court abused its discretion in awarding Karen the marital residence. Finally, Paul argues that the trial court’s actual division of the marital assets was not equal and that Karen received a significantly larger share.
As Paul acknowledges, the trial court has broad discretion in the division of marital assets. In re Marriage of Sawicki,
Here, the trial court indicated that it had endeavored to apportion the martial estate equally between the parties. The trial court explained, however, that an exact split was difficult and that the marital shares were not exactly equal. The trial court awarded Karen $356,559, which was 55% of the marital estate, and awarded Paul $296,395, which was 45% of the marital estate. As noted above, the trial court explained that it had awarded Karen the larger share because Paul had greater nonmarital assets.
We have reviewed the factors under section 503(d) of the Act that are relevant to this case and conclude that the trial court did not abuse its discretion in the manner it divided the marital estate. Contrary to Paul’s assertions, we believe that both parties contributed to the acquisition of the marital property over their lengthy marriage. See 750 ILCS 5/503(d)(l) (West 2004). Although Karen did not earn as much income as Paul during most of the marriage, the evidence established that Karen worked throughout the marriage and contributed toward the acquisition of the marital property. We also believe that the trial court’s distribution of the marital assets was reasonable after considering the economic circumstances of the parties (750 ILCS 5/503(d)(5) (West 2004)), as well as the age, health, occupation, sources of income, and employability of the parties (750 ILCS 5/503(d)(8) (West 2004)). The parties are of a similar age and their economic circumstances, although different, are comparable. Although Karen is in good health and employed, her annual income was only approximately $22,000 and there was no evidence that she had the potential to earn significantly more. The evidence established that Karen’s income was not sufficient to meet her needs. The evidence also established that Paul was disabled and was not presently earning any income from employment. Based upon such evidence, we believe that the trial court could have reasonably concluded that both parties needed significant marital assets to sustain themselves. In light of the fact that Paul had greater nonmarital assets, we conclude that the trial court’s decision to award Karen a larger percentage of the marital estate was not an abuse of discretion. See In re Marriage of Henke,
In so holding, we note that the trial court took great pains to indicate that it had not considered Paul’s disability benefits in its division of the marital estate, and we believe that its property division evidences that it did not, in fact, do so. Indeed, had it been permissible to consider Paul’s receipt of disability benefits, we believe that the trial court could have awarded a significantly larger share of the marital estate to Karen to offset the discrepancy in the parties’ income. The trial court, however, did not do so, and we believe that its ruling is in conformity with the principles articulated in Hisquierdo and Crook.
Paul also argues that the trial court abused its discretion in awarding the marital residence to Karen. The trial court’s award of the marital residence, as with other matters relating to the division of the marital property, is reviewed under an abuse-of-discretion standard. In re Marriage of Caldwell,
We next consider the effect of the trial court’s overvaluation of Paul’s SEP retirement account upon the division of the marital assets. As noted above, the value of Paul’s SEP account at the time of trial was $92,960, which was $20,408 less than the value placed upon it by the trial court. Subtracting this amount, the total marital estate was $628,546. Using the 55/45 percentages ordered by the trial court, Karen was entitled to receive $345,700.30 of the marital estate and Paul was entitled to receive $282,845.70 of the marital estate. In order to achieve such a division, and to avoid additional litigation between the parties, we modify the trial court’s dissolution order as it relates to the division of Paul’s SEP retirement account. See 155 Ill. 2d R. 366(a); In re Marriage of Grunsten,
We next consider the propriety of the trial court’s ruling on the issue of maintenance. Paul initially contends that the trial court erred in denying his request for maintenance from Karen. Paul argues that, in denying his request, the trial court improperly considered his receipt of VA disability benefits. Specifically, the trial court found that Paul received disability payments that were sufficient to pay for his monthly living expenses. The trial court stated that, while “the Crook case may under certain circumstances result in inequities, as commented on by the Illinois Supreme Court, there is no reason for this Court to seek inequities by ignoring the reality of the benefits received by [Paul] on the issue of his right to receive maintenance from [Karen].” Paul argues that the trial court’s consideration of his receipt of disability benefits in ruling upon his petition for maintenance violated federal preemption principles.
Paul’s contention lacks support in the governing case law, which has held that federal preemption principles do not preclude a state court from ordering a veteran to pay court-ordered family support obligations from disability benefits. In Rose v. Rose,
“Though the legislative history for this provision is also sparse, it recognizes two purposes: to ‘avoid the possibility of the Veterans’ Administration . . . being placed in the position of a collection agency’ and to ‘prevent the deprivation and depletion of the means of subsistence of veterans dependent upon these benefits as the main source of their income.’ [Citation.] Neither purpose is constrained by allowing the state court in the present case to hold appellant in contempt for failing to pay child support. The contempt proceeding did not turn the Administrator into a collection agency; the Administrator was not obliged to participate in the proceeding or to pay benefits directly to appellee. Nor did the exercise of state-court jurisdiction over appellant’s disability benefits deprive appellant of his means of subsistence contrary to Congress’ intent, for those benefits are not provided to support appellant alone.
Veterans’ disability benefits compensate for impaired earning capacity [citation], and are intended to ‘provide reasonable and adequate compensation for disabled veterans and their families. ’ [Citation.]” (Emphasis in original.) Rose,481 U.S. at 630 ,95 L. Ed. 2d at 610 ,107 S. Ct. at 2036 .
The Court found that family support obligations are “deeply rooted moral responsibilities” that are distinct from the division of community or marital property, which is “more akin to an amoral business relationship.” Rose,
In conformity with the principles articulated in Rose, the reviewing courts of numerous other states have held that a trial court may properly treat a veteran’s present and future disability benefits as income in determining the veteran’s obligation to pay alimony or maintenance. See Allen v. Allen,
Although no Illinois court has considered the precise question of whether a trial court may consider a spouse’s receipt of veterans’ disability benefits in ruling upon a petition for maintenance, our research has revealed two cases that provide guidance on the issue. In In re Marriage of Pope-Clifton,
In In re Marriage of Rogers,
“Crook commented on the fact that because Congress reserved the authority to amend or repeal provisions of the Social Security Act, the United States Supreme Court has held that social security beneficiaries have a ‘noncontractual interest’ in social security benefits and that those benefits are not to be considered as an accrued property right. *** The prohibition against anticipation preserves congressional freedom to amend the Social Security Act and prevents increased harm against a beneficiary whose payments are reduced after he has already been ordered to make a property division based on those payments. [Citation.] An award of maintenance, which is modifiable, does not raise those concerns. The trial court fashions an award of maintenance on the basis of the circumstances disclosed by the evidence at the time of the hearing.” Rogers,352 Ill. App. 3d at 899 .
In our view, these authorities provide a compelling basis for concluding that a trial court may consider a former spouse’s present and anticipated disability benefits in determining the issue of maintenance. Under Rose, it is evident that veterans’ benefits are not solely for the financial support of the veteran, but for the veteran’s family as well. Thus, a veteran’s obligation to support his or her family has thus been recognized as an exception to the anti-attachment provisions contained in section 5301(a)(1). Rose,
Contrary to Paul’s assertions, Crook does not compel a different conclusion. Crook dealt with the question of the treatment of Social Security benefits in the equitable distribution of marital assets and did not address the issue of maintenance and child support. The holding reached by the court in Crook was predicated upon its determination that Congress intended to preempt state law property division schemes as applied to Social Security benefits upon divorce. Crook,
We thus find no impropriety in the trial court’s consideration of Paul’s veterans’ disability benefits in ruling upon his request for maintenance. In denying Paul’s request, the trial court simply noted that Paul received sufficient income in the form of disability benefits to sustain himself without the need of maintenance from Karen. Under the authorities discussed above, federal law did not preempt the trial court’s consideration of these benefits, nor was such consideration precluded by the anti-attachment provisions of section 5301(a)(1). Moreover, we note that the trial court commented that, even if it were to disregard Paul’s receipt of disability benefits, Karen’s income and expenses rendered her unable to contribute toward Paul’s maintenance. We thus find no error in the trial court’s reasoning or ruling on Paul’s request for maintenance.
Paul next contends that the trial court abused its discretion when it reserved ruling on Karen’s request for maintenance and ordered Paul to report annually to Karen on the status of his disability. Paul argues that, in light of the VA’s determination that he was disabled, the trial court was “without authority to surmise that [his] disability may not be permanent and that maintenance on the basis of employability would be reserved.” Paul argues that the trial court’s order that he annually report to Karen on the status of his disability infringes upon the “exclusive realm” of the VA. Paul also argues that the trial court erred in denying his request to take judicial notice of the VA’s final written order adjudicating him to be disabled.
The propriety of a maintenance award is within the discretion of the trial court and the court’s decision will not be disturbed absent an abuse of discretion. In re Marriage of Schneider,
Here, the trial court apparently determined that Karen was entitled to maintenance due to her limited earning capacity and financial resources. However, because Paul’s entire income came from VA disability benefits, the trial court found that it could not consider this income under Crook and determined that Paul lacked any income to pay maintenance. Based upon Dr. Zadecki’s testimony, the trial court found that there was a possibility that Paul’s disability would subside sufficiently to allow him to return to employment. The trial court therefore reserved the issue of maintenance and ordered Paul to annually provide Karen an “updated report relative to his continued disability.” The trial court ordered that the reservation remain in effect until the deaths or retirement of the parties, or Karen’s remarriage or cohabitation with another.
The trial court’s decision to reserve jurisdiction on the issue of Karen’s request for maintenance was not an abuse of discretion. The evidence established that Karen’s annual income of approximately $22,000 was insufficient to support the same standard of living she enjoyed during the marriage. Under such circumstances, it was reasonable for the trial court to conclude that Karen would be entitled to an award of maintenance in the event that Paul’s financial resources allowed. As noted, the trial court found that Paul’s present ability to pay maintenance was limited due to his disabled status and his receipt of disability benefits. In light of our discussion above, the trial court properly could have considered Paul’s disability income in determining his present ability to pay maintenance. However, Karen has not filed a cross-appeal, and thus we will not disturb the trial court’s finding that, as of the date of trial, Paul was unable to pay maintenance. Nonetheless, given Karen’s need, we hold that it was appropriate for the trial court to reserve the issue of maintenance.
Paul argues that it was inappropriate for the trial court to reserve ruling on the issue of maintenance in light of the VA’s written adjudication that he is permanently disabled. Paul argues that the trial court should have taken judicial notice of this adjudication and abided by it. Initially, we agree with Paul that the trial court erred in denying his request to take judicial notice of the VA’s written adjudication. Public documents that are included in the records of other courts and administrative tribunals may be the subject of judicial notice. NBD Highland Park Bank, N.A. v. Wien,
“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. *** fT]he decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.” 38 U.S.C. § 511(a) (2000).
After reviewing the entirety of the evidence appearing in the record, however, we conclude that any error by the trial court in refusing to take judicial notice of the VA’s adjudication was harmless. See Wilder,
We conclude that, even had the trial court considered the VA’s findings, it still could have reasonably determined that Paul might be able to return to work in the future. Although the VA’s written adjudication characterized Paul’s disability as “permanent,” it did not specifically preclude the possibility that Paul might be able to return to work at some point in the future. Instead, the report rated Paul as 70% disabled and noted that Paul’s physician had reported that Paul’s symptoms “make employability difficult to obtain and maintain.” The report indicated that Paul was nonetheless competent and found that a 100% disability rating was not warranted. At trial, Paul’s treating physician, Dr. Zadecki, testified that Paul was presently unable to work as a result of his post-traumatic stress disorder. However, when questioned about the prognosis for Paul’s future, Dr. Zadecki testified that he was not “absolutely pessimistic” and acknowledged the possibility that, with medication, Paul might be able to function sufficiently to be self-employed. Presented with such testimony, it was reasonable for the trial court not to foreclose the possibility that Paul might someday be able to return to work.
While we conclude that no abuse of discretion occurred in the trial court’s decision to reserve ruling upon the issue of maintenance, we do believe that the manner in which the trial court reserved the matter was impermissibly open-ended and vague. When utilizing a “reserved-jurisdiction” approach to maintenance, this court has cautioned against reserving jurisdiction for excessively long or short periods of time. See Marriott,
Here, the trial court placed no specific time period upon its reserved jurisdiction. Instead, the trial court ordered Paul to make annual reports to Karen about the status of his disability. This process was to continue until the parties’ deaths or retirement, or upon Karen’s remarriage or cohabitation. We believe that such a process is excessively protracted and vague and will almost certainly result in contention between the parties and future protracted litigation. We also believe that such a reservation will result in the difficulties previously noted by this court in Scafuri and Marriott. We thus vacate the trial court’s order reserving jurisdiction over the issue of maintenance and remand the case with instructions that the trial court set a specific date to hold a hearing to rule upon the issue of Karen’s request for maintenance. See Marriott,
For the foregoing reasons, we hold as follows:
(1) we modify that portion of the trial court’s judgment dividing the parties’ property to reflect that Karen is awarded $4,141.30 of Paul’s SEP retirement account and that Paul is awarded the remaining $88,818.70 of the account;
(2) we affirm the remainder of the trial court’s judgment dividing the parties’ property;
(3) we affirm that portion of the trial court’s judgment denying Paul’s request for maintenance; and
(4) we vacate that portion of the trial court’s judgment reserving jurisdiction over Karen’s request for maintenance and remand the case for further proceedings consistent with this opinion.
Affirmed in part, modified in part, and vacated in part; cause remanded with instructions.
O’MALLEY, PJ., and GEOMETER, J., concur.